First Nations chiefs have launched a constitutional challenge against Ontario and Canada, saying the two governments aren't adequately enforcing their communities' laws and that this amounts to "discrimination."
"We can no longer tolerate this discrimination. Canada and Ontario have failed for years to ensure that our First Nations laws are enforced and prosecuted," Ontario Regional Chief Glen Hare said on Tuesday morning at Queen's Park.
The statement of claim from the Chiefs of Ontario says that due to a lack of enforcement, First Nations laws "generally do not function effectively in Ontario."
"This results in inequitable access to important benefits for First Nations people in Ontario, especially those residing on reserve, including access to justice, the rule of law, community safety, protection of property, and individual wellbeing, contrary to s. 15 of the Canadian Charter of Rights and Freedoms," states their claim, filed to Ontario's Superior Court of Justice on Tuesday. Section 15 covers equality rights.
The claim states that First Nations laws are "important and necessary" when provincial or federal laws don't apply to reserve lands or when they're "needed to address unique needs or circumstances."
"These inequalities impede attempts to use First Nations laws to address the legacies of colonialism and pre-existing disadvantages, including addiction, disproportionate victimization, and socio-economic inequalities. This results in serious harm, including death, injury, financial loss, reduced wellbeing, and other hardships," the document filed to the court said.
While Hare said they've been asking the provincial government to make changes for years, one of their concerns is over the Community Safety and Policing Act (CSPA), a law passed by the Ford government and implemented on April 1. The legislation replaces the Police Services Act and includes a series of changes to standards and oversight of policing such as allowing officers to be suspended without pay in some instances.
At issue is one section of the act that says "adequate and effective policing does not include, (a) the enforcement of municipal or First Nation bylaws, other than prescribed bylaws." The act defines "prescribed" as "prescribed by the regulations."
Deputy Grand Chief Stacia Loft of the Association of Iroquois and Allied Indians said First Nations communities don't feel as safe as their neighbours and that this is due to the "flawed CSPA."
"This Ford government says it respects our communities, our nationhood and self-determination, but their legislation, the CSPA, says otherwise," Loft said. "The government is treating us like third-class citizens. This stops today."
Darren Montour, president of Indigenous Police Chiefs of Ontario, said the two levels of government need to ensure that once police officers "enforce the law, they prosecute it, otherwise the law is meaningless."
He added that they need to know First Nations laws "mean something to our communities."
Montour said there are nine First Nations police services across the province that enforce the bylaws in their communities. The communities that don't have their own law enforcement service are policed by the Ontario Provincial Police (OPP).
"So they're not mandated by the new legislation to enforce those laws," he said. "So going forward without the enforcement of these laws in these communities, that's going to jeopardize the safety of those communities."
He previously told The Trillium that communities rely on bylaws to "keep unwanted people out, to keep out people smuggling liquor into dry communities in the north or drugs or preventing waste from coming in."
So a community that doesn't want alcohol in it due to addiction rates, for example, might pass a bylaw that could allow for individuals trying to bring alcohol in to be charged and removed from the community.
Kent Elson, a lawyer with Elson Advocacy who is representing the Chiefs of Ontario, said there have been cases where the OPP is not enforcing First Nations laws.
"But it's both police and prosecutors, you need both elements to be there," he said.
Elson added that there are also cases where provincial laws don't apply on reserve and gave the example of the Residential Tenancies Act.
"If you are a First Nation person and you want to rent out a place on reserve, you don't have the kind of protections that everyone else in Ontario would have from illegal eviction, or if you have a dangerous tenant, how to get that person out," he said.
The legal claim also noted this example.
"The First Nations person living on reserve does not have access to those and they cannot rely on First Nations laws to create an efficient process because the lack of enforcement and prosecution undermines those laws where they exist, and causes many First Nations to decline to pass said laws due to the futility of doing so," it stated.
Hare said First Nations police forces and the OPP work well together and called on the two levels of government to "not divide the people that protect us in Ontario."
NDP MPP Sol Mamakwa kicked off question period on Tuesday by asking the government about the issue, with Solicitor General Michael Kerzner responding, "As this matter is before the court, it would be inappropriate for me to comment any further."
"It's totally unacceptable the way they answered," Mamakwa told reporters after question period. "That's just a lame excuse the way they hide behind the courts ... they can actually make change today."
Hare said he was "very disappointed" to hear the minister's comments.
He said the next step is for the premier and prime minister to sit down with First Nations to address their concerns
"We don't want to go to court. I'm sure they don't want to go to court. But they're the only ones that can turn this us around and call us to the table," he said.
